Khan Mujahid Umar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1807/2018

[2020] HKCFI 1279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1807 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 10 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 5 December 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong through China illegally on 16 May 2015 and was arrested by police. He lodged a non-refoulement claim on 18 May 2015.

5.He claimed that if refouled, he would be harmed or killed by Idress, his creditor because of a loan dispute with him.

6.He had borrowed 1.2 million Pakistan Rupees from his creditor for his business of a snooker game club. He lost money in his business and was unable to pay the interest. He was twice attacked on the street by people sent by the creditor, the first time using wooden sticks, the second time iron bars. He therefore left Pakistan and paid an agent for him to come to Hong Kong. He surrendered himself to police immediately after his arrival in Hong Kong.

The Director’s Decision

7.The Director considered his application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 27 March 2018, the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. However, his application for the appeal was late. The Board considered that the deadline for him to file his Notice of Appeal was 12 April 2018 and the Notice of Appeal was received by the Board on 16 April 2018. It was 4 days’ delay.

10.The Board applied section 37ZT of the Ordinance to his case and considered the reason given by him that the immigration officer told him that the commencement date for counting the period of appeal was from 11 April 2018 not acceptable because the immigration officer simply had no authority to change the statutory period for appeal. The Board further considered the case of the United Kingdom, The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122. The Court of Appeal in this case considered three stages for the application:

a.     seriousness or significance of the delay;

b.     any good explanation for the delay; and

c.     all the circumstances of the case, applying the two factors in CPR rule 3.9, i.e. (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.

11.Having considered the above factors, the Board was not satisfied that there were special circumstances pursuant to section 37ZT(3) of the Ordinance to extend time for the applicant to file his Notice of appeal.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 held at §§43-45:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, Ex parte Doody [1994] 1 AC 531 at 560 D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45.     It is for the Secretary to make such a determination.  The courts should not usurp that official’s responsibility.  But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.  R v Home Secretary, Ex parte Bugdaycay [1987] 1 AC 514 at 531 E-G.  If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

15.There are three observations in this case.

16.First, the delay is four days. I wonder, given the applicant was acting in person and with his explanation, it will fall within the first category of the Begum’s case. I suppose this is arguable.

17.Second, CPR rule 3.9 of the UK practice does not apply in Hong Kong. CPR and Civil Justice Reform in Hong Kong are not identical, at least the objectives, one being overriding and the other underlying. More importantly, Order 1A, rule 2(2) provides:

“In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

18.It seems that the Board had not made a distinction of the CPR and the CJR before it decided to apply CPR, rule 3.9 to this case.

19.Third, the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“8. If the application for appeal to the Board is late, the applicant has to apply for late filing of the notice, with reasons in support of the application. …

17. Where a notice of appeal is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

18. Where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application. …

20.     It was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

20.I find that it is at least arguable that the applicant may succeed in his application for judicial review of the Board’s Decision.

CONCLUSION

21.I therefore grant leave to the applicant to apply for leave for judicial review. The applicant should take out the application in accordance with Order 53 rule 5 of the Rules of the High Court.

Dated the 23^rd day of June 2020

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1